The U.S. Court of Appeals for the 10th Circuit recently ruled that states cannot deprive a person of the fundamental right to marry simply because he or she chooses a partner of the same sex. This marked the first time that a federal appeals court has weighed in on the matter, and the early thinking is that the Supreme Court may take this case. Finally, marriage equality in all 50 states, right?

This is all good, yeah, woohoo! (Sidenote: my gaydar sucks big time. Straight guys are gay, gay guys are straight. Hell, lesbians are twinks and vice versa, but I thought I had developed a fail-safe. To determine if a guy is family, I simply look down at his ring finger. Last week, I caught myself doing this. I looked down at this dude’s finger, which indeed was adorned with a ring. Done — he’s straight. Then I remembered the whole marriage equality thing: he’s gay! But, as he opened his clearly European mouth and uttered something about the weather, his Belfast burr turning “air” to “ire,” I remembered the Euro-metrosexual-monkey-wrench! Gay or straight, damnit?! Alas, I resigned myself to utter cluelessness.)

Courtesy of Quick Meme

In all seriousness, it’s really awesome that the lines between gay relationships and straight relationships are increasingly blurry. That’s not the endgame, though. Even if the Supreme Court takes this Utah case and sides with the 10th Circuit about the fundamental right to marry (big assumptions with the Roberts Court), it won’t affect other types of discrimination against the LGBTQ community. Marriage equality is only the opening salvo in a still-uphill battle for full equality. We ought not lose sight of that.

Don’t get me wrong, ever the Machiavelli in me says sure, get to marriage equality by any means necessary. Those means, under the reasoning of the 10th Circuit, would be the Fourteenth Amendment’s Due Process Clause. That is, if the Supreme Court rules favorably in this case, and on due process grounds, it would mean that no person, gay or straight, can be deprived of the right to marry. But due process deals only with “fundamental rights.” What about laws that discriminate against gay men in blood donation? What about workplace discrimination?

Courtesy of Matt Buck via Flickr

A decision on due process grounds would not touch these other types of discrimination, but a ruling under the Fourteenth Amendment’s Equal Protection Clause would. That would deal with all manner of discrimination against the LGBTQ community, including marriage equality.

Brief Equal Protection primer: Under the Fourteenth Amendment’s Equal Protection Clause, laws that single out a specific group for differential treatment or disproportionately impact that group, if challenged, are subject to judicial review. If the law discriminates on the basis of a suspect classification, such as race, it must satisfy the most exacting degree of review — strict scrutiny. Thanks to second-wave feminism, discrimination on the basis of sex/gender is subject to intermediate scrutiny. As it stands now, discrimination on the basis of sexual orientation is subject to the lowest, most deferential level of judicial review — rational basis review.

Blah, blah, blah, I’m losing you so let me get to the point. Until the Supreme Court rules on equal protection grounds rather than due process that sexual orientation-based discrimination merits a higher level of judicial scrutiny, discriminatory laws will continue to receive minimal judicial scrutiny.

I’m glad that marriage equality is sweeping across the country, and that the Supreme Court may finally have occasion to legalize it nationwide. Indeed, by no means would this be a pyrrhic victory. However, it would only nominally affect other issues of discrimination against the LGBTQ community, issues that are arguably more important than marriage equality.

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Chris Copeland (@ChrisRCopeland) is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street.

Featured image courtesy of [Victoria Pickering via Flickr]

Chris Copeland

Chris Copeland is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street. Contact Chris at staff@LawStreetMedia.com.

The post Due Process is the Red Herring in the LGBTQ Movement appeared first on Law Street.

How many of you remember Emi and Hannah, my super cute friends who live in Virginia? Last time we saw them, they were cautiously excited about the prospect of Va. striking down its gay marriage ban.

Well, they’re pretty happy right now. U.S. District Court Judge Arenda Wright Allen struck down the state’s prohibition on same-sex marriage just in time for Valentine’s Day. Yay!

Congratulatory baby goat kisses for Emi! Courtesy of Hannah R. Winsten.

I promised y’all (that one’s for you, Southern readers) that we’d check in with Emi and Hannah again as this case progressed, and I wasn’t about to disappoint you. Seriously — as soon as news about Judge Wright Allen’s decision dropped, I started getting social media requests for a follow-up story about these two lovebirds. Apparently everyone agrees with me that they’re the cutest.

So! I asked Emi and Hannah what their reaction to the news was, and it took over a week for them to respond! Don’t worry, though, they had a good reason. Here’s what Hami (celebrity couple name-merge suggestions?) told me:

“I think I’ve been avoiding sending you a ‘response to the news’ because I’m still waiting for the other shoe to drop,” said Hannah. “With everything on hold as the opposition appeals, my pessimist side is waiting until something ‘real’ happens until it commits to any sort of celebration.”

Hannah and her cat are only mildly amused. Courtesy of Hannah R. Winsten.

LOL GUYS. Hami was totally right. Literally 15 hours ago, The Virginian Pilot reported that appeals have been filed. Le sigh.

Appeals were filed on behalf of Norfolk Circuit Court Clerk, George Schaefer, and State Registrar of Vital Records, Janet Rainey — two Virginia court clerks who don’t like to issue marriage licenses to same-sex couples. And, since Judge Wright Allen delayed implementation of her ruling until after all appeals have been heard, same-sex marriage still isn’t actually recognized in the state of Virginia. Thanks, guys.

But, for all the irritation and inconvenience this delay is causing, it’s also providing us with some serious entertainment value. The reasoning behind the opposition’s anti-gay-marriage stance is truly hilarious.

If Hami’s pig Alice wasn’t busy being so cute, she’d be laughing so hard right now. Courtesy of Hannah R. Winsten.

The lawyers trying to stem the tide of Southern gay weddings are citing Virginia’s 400-year tradition of heterosexual marriage as a reason for upholding the ban on same-sex marriages. They’re just not traditional enough to be allowed, apparently.

You know what else is in Virginia’s 400-year tradition? They’ve got an impressive history of blocking school integration in favor of racial segregation, stopping interracial marriage, and denying women the right to attend the Virginia Military Institute. And that’s not even mentioning the Native American genocide that essentially served as Virginia’s debutante ball.

Also, SLAVERY.

Hami’s cats are throwing some major shade for the obvious omission of SLAVERY. Courtesy of Hannah R. Winsten.

Let’s all take a moment and collectively laugh (to keep from crying) at Virginia’s ridiculous attempt at painting its traditional history as something to proudly preserve. Come on, guys, you’re better than that.

But maybe they’re not, because it actually gets worse. The super awesome attorneys representing Schaefer and Rainey are also arguing that marriage should only be granted to couples who can procreate. By this reasoning, tons of existing, straight marriages would be considered null and void. Couples who are infertile, who include a post-menopausal woman, or who just plain old don’t want to have kids would all be locked out of the marriage club.

This is just getting silly.

Almost as silly as Emi in a corn suit. Courtesy of Hannah R. Winsten.

Amid all this ridiculousness, it would be easy to get discouraged. But Emi and Hannah have it all in perspective.

“While this ruling could make life a lot simpler for Emi and me, it doesn’t mean that magically everything is fixed for queers in this country,” said Hannah. “I’ll be happy to have our marriage recognized and to get some of the very practical legal elements that go along with that, [but] this isn’t by any stretch of the imagination the final goal. Homophobia isn’t over any more than sexism is over or racism is over or classism is over.”

PREACH. Courtesy of Hannah R. Winsten.

Right on, lovebird. Marriage is just one piece in a giant and complex puzzle, in which queers, women, people of color, and poor people are systematically marginalized in the U.S. I’ve written a ton about why marriage is kind of a shitty deal, and about how fucked queers still are, even if marriage equality is achieved. Wedding bells don’t change the fact that we’re statistically more likely to be unemployed, impoverished, and incarcerated than our straight counterparts. These are still giant problems.

And non-queers, or super privileged queers, sometimes forget about that.

“I actually had one of my lovely, kind, straight friends make a comment along those lines,” said Hannah. “[T]hat once gay marriages are legal and recognized throughout the country, the ‘war’ will have been won.”

Nope. Courtesy of Hannah R. Winsten.

Not so, loves. The war will be far from over. Until queer kids have stopped dominating the homeless population, until trans women of color stop getting murdered, until gay-bashing stops being a thing the war won’t be over.

In the meantime, though, let’s all shop at Heart Moss Farm and laugh at Virginia’s ridiculousness to keep from crying, OK?

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Hannah R. Winsten (@HannahRWinsten) is a freelance copywriter, marketing consultant, and blogger living in New York’s sixth borough. She hates tweeting but does it anyway. She aspires to be the next Rachel Maddow.

All images courtesy of [Hannah R. Winsten]

Hannah R. Winsten

Hannah R. Winsten is a freelance copywriter, marketing consultant, and blogger living in New York’s sixth borough. She hates tweeting but does it anyway. She aspires to be the next Rachel Maddow. Contact Hannah at staff@LawStreetMedia.com.

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